Eggebeen v. Sonnenburg

• Decision Date: 02 December 1941
• Citation: 1 N.W.2d 84,239 Wis. 213
• Parties: EGGEBEEN et al. v. SONNENBURG et al.
• Court: Wisconsin Supreme Court

239 Wis. 213

1 N.W.2d 84

EGGEBEEN et al.

v.SONNENBURG et al.

Supreme Court of Wisconsin

Dec. 2, 1941

Appeal from the Circuit Court for Sheboygan County; Henry Graass, Judge.

Reversed.

Action commenced November 20, 1939, by John W. Eggebeen, Chester C. Atkinson, Gerhard E. Zimmerman, Francis M. Hoekstra, William Eggebeen, Jean C. Vollrath, Evangeline Kohler, Lillie B. Kohler and Marie C. Kohler, plaintiffs, against Willard M. Sonnenburg, Doris Z. Sonnenburg, his wife, and their minor children Mary, Robert, Doris, Ruth, William and Donald, and the City of Sheboygan, defendants, to permanently enjoin the enforcement of an amendment of the zoning ordinance of the defendant city. From a judgment declaring the amendment unconstitutional and void and permanently enjoining its enforcement, defendants Sonnenburg appeal.

In 1926 the City of Sheboygan passed a general zoning ordinance, providing for Class A, B and C residence, and business and industrial districts. Class A residence districts were restricted principally to single family dwellings; Class B allowed two family dwellings, lodging and boarding houses; and Class C allowed apartment houses and multiple dwellings, apartment hotels, clubs, fraternity houses and hospitals. The area in question comprises all but two lots in the southern half of a city block bounded by Bluff Avenue on the south, North Third Street on the east, Vollrath Boulevard on the north and North Fourth Street on the west. The property was purchased by defendant Willard M. Sonnenburg in 1925, along with the southern half of the block immediately to the west. In 1926 it was classified by the zoning ordinance as a Class A residence district. In October, 1939, on recommendation of the city planning board the common council of Sheboygan amended the ordinance and classified the property as Class C residence district. The validity of the procedure in passing the ordinances is not challenged.

As to the physical characteristics present, it appears that a ravine which had formerly been the watercourse of First Creek extended from a point west of North Eighth Street eastward to the lake about three blocks east. The ravine was 250 to 300 feet in width and from 24 to 30 feet in depth. From time to time rubbish and waste materials had been dumped into the ravine. In Vollrath Park, just to the east across North Third Street, the ravine is so large that an amphitheater has been constructed in it. The area across Bluff Avenue on the south has buildings which are close together, which are occupied by more than one family and which otherwise constitute nonconforming uses. They existed in that state at the time of the adoption of the initial zoning ordinance and were consequently allowed to continue. The southern half of the block to the west across North Fourth Street has but three houses on it. One is near its northwest corner and the other two are on the south side facing Bluff Avenue. The two houses on Bluff Avenue are owned by Sonnenburg and one Fricke who purchased the lot from Sonnenburg. Sonnenburg's home was built in 1927 on filled-in ground. The west side of it settled nine inches. In 1932 repairs were made by constructing wide footings known as “floating foundations.” By 1938 the house had settled further for a total of 16 inches and repairs were again made by driving piling down to solid earth underneath the west foundation wall and a steel “I” beam was placed across the piling to support the house. The cost of these operations was $2,700. The ravine in that block was shallow. The Fricke home was only partially built on the filled-in ground and no trouble with settling had been experienced as to it. North of the rezoned property across Vollrath Boulevard is a section of fine detached single family dwellings. The Eggebeen brothers who own two lots in the northeast corner of the half block in question have withdrawn from the case. Another plaintiff lives in the northeast corner of the block involved. Other plaintiffs own homes on the north side of Vollrath Boulevard east and west of North Third Street and the remaining plaintiffs live on North Third Street some three blocks north of the rezoned parcel.

Evidence offered by defendants shows that the building of single family dwellings in this area is impracticable due to excessive cost resulting from the insecure footing. No foundation to support the super-structure can be had without the expense incident to driving piling or using a so-called “floating foundation.” It is claimed that the cost of building a foundation for an apartment house is smaller in proportion to its total cost than a private dwelling, and therefore it may be feasible to erect such a structure; that such a use is consistent with the public welfare; that the amendment will prevent a taking of defendants' property without due process; that the lots are now overgrown with weeds and form an unregulated playground; and that it is in the interests of public health, safety and welfare to rezone the area so as to permit the construction of an apartment house.

Under the original zoning ordinance there were four Class C or apartment house residence districts. There is testimony that three of them are unfitted for such purpose either because built up with buildingsor because in or near business districts. The fourth was so close to a coal yard as to have much soot and coal dust constantly blown over it.

Plaintiffs contend they purchased their property relying on the classification of the district as Class A for single family dwellings only; that the rezoning was purely for the economic benefit of Sonnenburg who invested in the area and now finds it unsalable for single residence purposes; and that it so interferes with their property as to constitute a violation of the equal protection clause of the constitution.

Werner & Clemens and Currie & Leberman, all of Sheboygan, for appellants.

Bassuener, Humke & Poole, of Sheboygan, for respondents.

FAIRCHILD, Justice.

Zoning by municipalities is allowed under sec. 62.23(5), Stats., now numbered sec. 62.23(7), and sec. 62.23...